Davy:
Good questions, all. I can respond to each of these in turn:
* Is the fact that the prohibited BFRs cannot be purchased a
"diligent-enough" defense to show that they therefore cannot be present
in the product?
--- If you had parts which previously had restricted substances in them and
have switched them over, it makes sense to test them or have them tested.
In the case of BFRs, if you have a certificate from a supplier that they do
not use brominated flame reatrdants of any kind in the plastic, then a
simple form of due diligence would be to do a quick check with an XRF (one
that has been configured to determine bromine in plastics). If bromine is
very low or below the detection limit, and you can verify the instrument can
determine low values of bromine in plastics using a reference material (MAT
RMs, for example), then that's a way of showing due diligence. Mere
acceptance of a supplier statement in such cases is not enough. If the
restricted substance can no longer be bought and can has not been used for
quite awhile (PBBs, for example), it makes sense that you would not have to
test for those substances. Documentation to that effect would be helpful,
however.
* Who has the burden of proof under European law?
---Burden of proof depends on what you're talking about. From a product
manufacturer's point of view, once they have placed a covered product on the
EU market (after July 1, 2006) they are making a statement that the product
is compliant. If an enforcement authority then asks for paperwork
documenting compliance efforts (showing due diligence), that evidence has to
be convincing. Proof is difficult to come by, but you have to do the best
you can with what is available. Each company is different, so it's your
choice on how to show due diligence, unless a customer has a requirement
you've agreed to fulfill.
If you're talking about an infraction, the burden of proof rests upon the
enforcement authority, but the producer must be able to show due diligence
in order to counter any action of an enforcement authority. Then the
documentation should be able to hold up in a court of law - that's why I'm
calling for a system that will provide legal protection for all stakeholders
based on standards and reference materials. However, there is more than one
way to skin a cat - you do not always need proof in the form of empirical
(test) data. Another kind of information, that based on logical deduction
and scientific principles, can also be employed where it does not make any
sense to test for something that cannot be present (you can't and shouldn't
test for everything in every material). ASTM F40 has just finished a
standard entitled "Standard Guide for Assessment of Materials and Products
for Declarable Substances" which should help reduce the amount of testing
necessary to show due diligence. It does not yet have a standard number,
but I will let you know when it does.
* What happens to product while a challenge is being resolved?
If you shipped the product, it would probably be held in quarantine until
released. But that's a good question - anyone know the answer?
----- Original Message -----
From: "Davy, Gordon" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, November 03, 2006 9:59 AM
Subject: Re: [LF] EU Not Busting for RoHS Violations Yet
Tim McGrady has ably pointed out the difficulty of determining RoHS
compliance of electronic products where no standard exists, and the
resulting manufacturers' vulnerability to "eco-zealous" enforcers. He
uses as example the difficulty of determining whether a brominated flame
retardant (which the products will all have) is one of the prohibited
ones.
Allen Ferry and others have commented on using "due diligence" as a
defense should compliance be challenged. I have three questions:
* Is the fact that the prohibited BFRs cannot be purchased a
"diligent-enough" defense to show that they therefore cannot be present
in the product?
* Who has the burden of proof under European law?
* What happens to product while a challenge is being resolved?
Perhaps Brian or someone else can answer another question, this one
concerning the use of Pb-free solder in electronics being used for
airplanes. Given that the major airplane manufacturers are now
expressing concern about Pb-free electronics reliability, do they make
any distinction in their requirements between electronics whose failure
would affect safety of flight and electronics whose failure would
disappoint passengers because they couldn't view a movie?
Gordon Davy
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